The U.S. Supreme Court ruled Monday that the federal district courts can hear challenges to the U.S. Environmental Protection Agency’s and U.S. Army Corps of Engineers’ 2015 Clean Water Rule, rejecting the federal government’s arguments that federal courts of appeal have exclusive jurisdiction over such claims. The Court’s ruling means that the Sixth Circuit will have to dissolve its nationwide injunction against the Clean Water Rule, which revised the definition of “waters of the United States” that are subject to the Clean Water Act. Meanwhile, suits in district courts can proceed, including a suit in the District of North Dakota, where the court granted an injunction against implementation of the Clean Water Rule in 13 states.
What is Prop 65?
Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. The law is highly technical, constantly evolving and actively enforced by the government and private enforcers. Continue Reading
Prop 65 Plaintiffs routinely file most Prop 65 cases in Alameda County, presumably because they believe it is a plaintiff-friendly forum. However, the California Court of Appeal recently issued a victory for Prop 65 defendants, finding that Prop 65 matters may be transferred to the venue where the cause arose. Dow Agrosciences LLC v. Superior Court (2017 1st Dist.)16 Cal.App.5th 1067. Continue Reading
Natural Resources Defense Council v. E.P.A., __ F.3d ___, 2017 WL 2324714 (9th Cir. May 30, 2017). The Ninth Circuit Court has vacated the conditional registration of the pesticide NSPWL30SS (“NSPW”)—an antimicrobial materials preservative that uses nanosilver as its active ingredient—on the grounds that the Environmental Protection Agency (“EPA”) failed to provide substantial evidence that the use of the ingredient was in the public interest. Id. at *2. Continue Reading
In re Big Thorne Project and 2008 Tongass Forest Plan, __ F.3d __, 2017 WL 2233755 (9th Cir. May 23, 2017). Plaintiffs, environmental conservation and activist organizations, brought suit against the U.S. Forest Service and Department of Agriculture (collectively, “Forest Service”) on behalf of individuals who fish, hunt, and “enjoy” Alaska’s Tongass National Forest. Id. at *3. Plaintiffs alleged that the Forest Service violated the National Forest Management Act (the “Act”) by approving either the 2008 Tongass Forest Plan or the Big Thorne logging project. Id. at *2. The Ninth Circuit affirmed the district court’s summary judgment in favor of the Forest Service, holding that the Forest Service’s approval was neither arbitrary nor capricious because the Act expressly grants the Forest Service discretion to balance competing interests, and the Forest Service reached its determination after a thorough analysis rationally supported by the evidence. Id. at *5. Continue Reading
Sierra Club v. Chesapeake Operating LLC et al., __ F. Supp. 3d ___, 2017 WL 1287546 (W.D. Okla. 2017). The Sierra Club filed a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) against Chesapeake Operating LLC, Devon Energy Production Co. LP, Sandridge Exploration and Production LLC, and New Dominion LLC (collectively, “defendants”), alleging that the defendants’ fracking activities increased the number and severity of earthquakes in Oklahoma. Id. at *1. The Sierra Club sought declaratory and injunctive relief from the court requiring the defendants to reduce their wastewater disposal volume, reinforce structures vulnerable to earthquakes, and establish an earthquake monitoring center. Id. The defendants moved to dismiss the complaint, contending that the court should decline to exercise jurisdiction under the Burford abstention and primary jurisdiction doctrines because the (“OCC”) has implemented new regulations and water disposal directives in response to increased seismic activity. Id. at *2. The district court granted the defendants’ motion to dismiss, deferring to the OCC expertise on both grounds. Id. at *10. Continue Reading
In July 2017, the California Supreme Court determined the federal Interstate Commerce Commission Termination Act of 1995 (49 U.S.C. § 10101 et seq.) (“ICCTA”) does not preempt the application of the California Environmental Quality Act of 1970 (Pub. Res. Code § 21000 et seq.) (“CEQA”), a state statute, to a state public entity railroad project on a rail line owned by that same entity, the North Coast Rail Authority (“NCRA”). Friends of the Eel River resolves a split among the California Courts of Appeal. However, the decision may conflict with federal precedent and could eventually reach the Supreme Court. As the majority opinion and the dissent both emphasize, the decision creates a direct conflict with the federal Surface Transportation Board’s (“STB”) determination that ICCTA preempts any application of CEQA to California’s state-owned, high-speed rail project. Thus, the dispute over CEQA’s application to High-Speed Rail may need to be resolved by the U.S. Supreme Court. Additionally, Friends of the Eel River introduces more legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco, as it appears to require that project to comply with CEQA, which could lead to additional litigation. Continue Reading
On July 27, 2017, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their proposed rule to rescind the Clean Water Rule. This is the same rule that was released in pre-publication form in June, which we described in a previous entry. Continue Reading
On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017. Continue Reading
Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum. The California Supreme Court recently upheld the San Diego Association of Government’s (“SANDAG”) determination that the year 2050 statewide GHG reduction goals set forth in Executive Order S-3-05 (“Executive Order”) issued in 2005 did not create a CEQA threshold of significance an agency must follow. However, the court did so for reasons different than SANDAG stated in the response to comments on the Environmental Impact Report (“EIR”) on proposed amendments to its Regional Transportation Plan (“RTP”). In Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603, the court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance because the Executive Order does not specify any plan or implementation measure to achieve its goal.” The EIR’s long-term GHG analysis adequately informed the public and agency, in part, because SANDAG summarized the Executive Order in the EIR’s regulatory framework section and disclosed the increase in GHG emissions in 2050 compared to the 2010 baseline. An analysis of “Lessons Learned and Reaffirmed” by the case appears at the end of this post.